Budd is a former NRA Director from NY and also a long time SCOPE chairman of the Board.
THE RIGHT SIDE
BY BUDD SCHROEDER
JANUARY 25, 2017
WILL PRESIDENT TRUMP PROTECT THE CONSTITUTION?
We have a new president in the White House and a new attitude regarding government. Donald Trump, in his inauguration speech, said that he wanted the people to be better represented and more in control of their lives. This hopefully, will be at the expense of the bureaucrats and the bureaucracies they control. We are overregulated as well as over governed. Under the last administration we have had our freedoms and constitutional rights infringed.
This has been the practice in New York to a greater extent under the rule of Andrew Cuomo and in both the Obama and Cuomo administrations Second Amendment rights have been infringed. The state infringements have been greater in New York than in America as a whole.
The biggest infringement of the Cuomo reign has been his signature SAFE act. This is the law passed literally in the middle of the night by administrative bullying and deal making. Governor Cuomo has always had a negative view when it comes to the subject of the Second Amendment rights and gun ownership.
The SAFE act has several provisions that are definitely an infringement on the right to keep and bear arms. Like many laws made, there are subjective wordings in this law. What is an “infringement?” That is a word, when challenged in a court of law, can result is many billable hours for lawyers. It is arguable and expensive to litigate.
One of the provisions of the law is that it requires universal background checks. Prior to the passage of this law a person needed a background check when he bought a firearm from a FFL dealer. The background check called a NICS Check is done by the FBI and by phone by the dealer. There are classifications that would disqualify a purchase such as a felony, drug addiction, dishonorable discharge from the military, mental disabilities, illegally in the country, orders of protection and history of domestic violence being the most obvious.
Under the SAFE act, the check must be passed before a private sale or gift of a gun is made to anyone who is not an immediate member of the family. Parents, spouses, and children can have them. Cousins, grandchildren, best friends or neighbors are included in the list of those who need a background check to receive the firearm.
Since a photo ID is required to get the NICS check the Amish now may not buy a gun. Their religion forbids their having a photo of themselves and therefore they can’t get the necessary background check. The Amish have a beautiful reputation of being peaceful and law abiding citizens who do not cause or get into trouble. They are extremely nonviolent, but use guns for hunting to put meat on the table during the hunting season.
The SAFE act took that constitutional right away from them and there is no legal way that they can purchase a firearm in New York. When lawmakers who voted for the bill are asked why they are discriminating against the Amish, the answers are vague. As the guy in the movie said: Stupid is as stupid does.”
Another part of the bill that is really troubling is the one regarding mental health. The way this part of the law works if a person is involuntarily admitted to a hospital or has been prescribed an antidepressant, that record is sent to the Office of Mental Health. That department runs it thru the bureaucracies of the State Police to County Clerks and if they find a person on that list who has a pistol permit, the permit is suspended and the guns are removed from the person’s possession. It is usually done by a police department. They confiscate all guns, not just the handguns.
If the person hires a lawyer to pursue this action and wins because of a false report, the permit may be returned and the handguns with it. However, the police will keep the rifles and shotguns. To get them returned requires a lawyer to file an Article 78 with the Supreme Court to get a court order for the police to release the guns. This average cost for this procedure is in the $2,500 range. As a member of the court said: “Sometimes, it is cheaper just to buy a new gun.” And the politicians call this “justice.”
However, even if the permit and guns are returned there is another problem, Along with the process, the FBI is notified and the person’s name is put on the NICS list which means they are still forbidden to buy a gun. Many believe that because they are on the list, they can’t handle a gun. That is in the works for clarification. However, so far, the state has shown no interest in getting the person off the NICS list and there is no process for a person falsely accused to have the name removed. The gun rights groups are working on that injustice.
Finally, the State Police requires all people who have a handgun permit issued before five years ago to recertify it and it must be done before the end of January in 2018. The State Police would prefer to have it done by computer and email for their convenience. However the gun groups are angry and are not interested in making the process convenient for the State Police.
Some are suggesting that those who must comply should wait until the end of January and send in the necessary form with the information, including a descripting of all handguns in their possession, by certified mail, return receipt requested. This suggestion is making its rounds to gun clubs and sportsmen’s organizations.
It is hoped that there will be enough intelligent legislators in Albany to repeal the SAFE act, but it is a long shot as long as Governor Cuomo is in office and the Democrats control the Assembly. This is going to be a tough battle and the hundreds of thousands of pistol permit holders just may mobilize enough to constantly call their assemblymen and senators to voice their objection to this requirement.
If that fails, perhaps President Donald Trump will put a constitution loving justice on the Supreme Court and they will find the SAFE act to be unconstitutional. That is another option the pro-gun organizations are exploring. Time will tell. This may be the stimulus needed for the formerly apathetic to rise up and demand a government of the people, even in New York.